States should respond to violenceagainst LGBTI persons

In this thematic report the IACHR develops state obligations to face violence against LGBTI persons, including measures to prevent, investigate, judge, sanction and provide reparations for this acts of violence.

General Recommendations

Data Collection

Undertake efforts and allocate sufficient resources to systematically collect and analyze data on the prevalence and nature of violence and discrimination based on prejudice against LGBTI persons, or those perceived as such.tweet this

Law Enforcement

Adopt the necessary measures to prevent torture, cruel, inhuman and degrading treatment or any form of police abuse against LGBTI personstweet this

Stigmatization y stereotypes

Design and implement policies and programs to eliminate stigmatization, stereotyping and discrimination against LGBTI persons, or those perceived as such.tweet this

Specialized Institutions

National Human Rights Institutions (NHRIs) are urged to strengthen their work on the promotion and protection of the human rights of LGBTI persons, including specific measures to counteract prejudices Establish or strengthen specialized departments or units within Offices of the Ombudspersons, as well as other State institutions, to address the situation of violence and discrimination faced by LGBTI persons.tweet this

Trans persons

Adopt measures, including legislation, public policies, and programs, to address the underlying causes of violence against trans and gender non-conforming persons. These measures must ensure, among other things, that trans persons have access, without discrimination, to formal employment, education, health care, and housing. tweet this

Sex work

Review legislative frameworks that criminalize and stigmatize sex workers.tweet this

Prohibit non-medically necessary surgery

Adopt laws and national regulations expressly prohibiting non-medically necessary surgery and related medical intervention for intersex children and intersex persons, when administered without their full and informed consent.tweet this

Participation

Ensure that non-governmental organizations, civil society actors, and LGBTI persons and support groups, have direct participation in, and are systematically consulted and made part of decision-making processes regarding, the development of legislation, public policies, and programs to address the human rights of LGBTI persons.tweet this

Recommendations aimed at the Executive Branch

Repeal laws that criminalize

Take measures to repeal laws that criminalize consensual same-sex intimacy, laws prohibiting “gross indecency” and “serious indecency”, in order to ensure that they are not applied to criminalize same-sex intimacy short of intercourse, and legislation criminalizing cross-dressing. In the meantime, take immediate steps to support an explicit and formal moratorium on the enforcement of these laws. tweet this

A life free from violence and discrimination

Adopt comprehensive and countrywide public policies that guarantee the rights of LGBTI persons to be free from violence and discrimination with the participation of LGBTI persons.. tweet this

Publicly reject acts of violence

Condemn and take a public stand against acts of violence and discrimination based on sexual orientation, gender identity and expression, and bodily diversity tweet this

Training for public officials

Adopt measures to ensure that public officials respect the rights of persons with diverse sexual orientations and gender identities and expressions.tweet this

Educational Campaigns about Intersex Persons

Design and conduct educational campaigns, in coordination with ministries of education, in order to eliminate stereotypes, stigma, and invisibility surrounding intersex persons in school curricula.tweet this

The principles of equality and non-discrimination, with a special focus on sexual, gender, and bodily diversity, should be key elements of such policies.

Conduct awareness-raising and sensitization campaigns at the national level concerning the short-term and long-term effects of so-called “normalizing” interventions on intersex children.tweet this

Programs and policies

Ensure that programs and policies designed to protect and promote the rights of LGBTI persons are sufficiently funded and staffed with personnel trainedtweet this

Recommendations aimed at the Legislative Branch

Decriminalize

Take measures to repeal laws that criminalize consensual same-sex intimacy, laws prohibiting “gross indecency” and “serious indecency”, in order to ensure that they are not applied to criminalize same-sex intimacy short of intercourse, and legislation criminalizing cross-dressing.tweet this

Repeal vaguely defined laws

Adopt measures to modify or repeal legal provisions that penalize public conduct on vaguely defined grounds related to the protection of “public morals”, “loitering” and beggary. Such provisions have a disproportionate impact on LGBT persons, or those perceived as such. tweet this

Anti-discrimination Legislation

Enact anti-discrimination legislation or amend existing legislation in order to prohibit all forms of discrimination, that include sexual orientation, gender identity and gender expression, sex characteristics or intersex status.tweet this

Gender Identity Laws

Enact gender identity laws that recognize the rights of trans persons to change the name and gender marker on birth certificates and identity documents, through expedite processes without the need to present medical or psychological/psychiatric evaluations or certificates.tweet this

Prejudice-based crimes legislation

Enact hate crimes or violence based on prejudice legislation – either through amendments to existing legislation or through the adoption of new laws – to identify, prosecute, and punish prejudice-based violence against persons due to perceived or actual sexual orientation and gender identity and bodily diversity.tweet this

Punish hate speech

Adopt legislation to punish hate speech, in accordance with the American Convention on Human Rights and the standards established by the Inter-American Commission and Court.

Diversity perspective on domestic violence laws

Undertake measures to assure that LGBT persons are not excluded from laws that protect individuals from domestic violence and or any other interpersonal relationship.tweet this

Recommendations regarding Access to Justice

Preventing, investigating, punishing and providing reparations

Take all necessary measures to apply due diligence in preventing, investigating, punishing and providing reparations regarding violence against LGBTI persons, regardless of whether the violence occurs in the context of the family, the community, or the public sphere, the latter of which includes education and health facilities.tweet this

Investigate and eliminate specific barriers

Undertake effective, prompt and impartial investigations into killings, torture, and acts of cruel, inhuman and degrading treatment, as well as other acts of violence against LGBTI persons.

Tackle the many specific obstacles and barriers faced by LGBTI persons when they seek justice.

Authorities must conduct an exhaustive analysis of every possible theory of the crime and thus establish whether or not the motive for the crime was the victim’s promotion and defense of human rights and/or the sexual orientation or gender identity of the victim. tweet this

Specialized Prosecutorial Units

No Biased Justifications

Undertake the necessary legal and policy changes to expressly indicate that the sexual orientation, gender identity, or gender expression of victims can never be used to establish a partial or full justification of crimes committed against them.tweet this

Training for “justice operators”

Adopt protocols and prioritize specialized training for “justice operators” (including judges, prosecutors, and public defenders), regarding the human rights of LGBTI persons.tweet this

Prevention of criminalization

Issue guidelines and protocols to assist law enforcement agents and judges to ensure that legal provisions that penalize public conduct on vaguely defined grounds related to the protection of “public order,” are not applied or enforced in ways that criminalize LGBT persons, or those perceived as such.tweet this

Prejudice motivated crimes

The IACHR considers that the following elements, among others, may be indicative of a crime based on prejudice, particularly when found in combination:

statements or declarations by the victim or alleged perpetrator that the crime was motivated by prejudice;

the brutality of the crime and signs of animosity (including cases of homicide in which the nature and level of violence appeared to go beyond a mere intent to kill and were directed at punishing or “erasing” the identity of the victim);

insults or comments made by the alleged perpetrator(s) that made reference to the sexual orientation and/or gender identity of the victim(s);

the victim’s status as an activist in LGBT issues or a defender of LGBT persons and their rights, or the victim’s participation in events to recognize LGBT diversity;

the presence of a known bias against LGBT persons on the part of the perpetrator, or situations in which the perpetrator is part of a group which is considered to be biased against LGBT persons;

the nature or significance of the place where the violence or incident took place, or from where the victims were lured (for example, a place known to be frequented by LGBT persons, or an area where sex work involving trans persons is known to take place); and

the victim or victims having been part of a pair or group of LGBT persons at the time the violence occurred.

The Commission wishes to emphasize that the list of items in the preceding paragraph is not exhaustive , and that a crime may be motivated by prejudice in the absence of any of these items .

Prevent hate speech

Preventive mechanisms could include: education to promote understanding and combat negative stereotypes and discrimination against LGBTI persons, including programs aimed at schoolchildren and informational campaigns; training for law enforcement agents and those involved in the administration of justice regarding the prohibition of hate speech and incitement to violence.tweet this

Punish hate speech

Adopt legislation to punish hate speech that constitutes incitement to lawless violence against LGBTI persons, in accordance with Article 13(5) of the American Convention on Human Rights and the principles and standards established by the Inter-American Commission and Court.tweet this

Raise awareness among public officials at all levels of their responsibility to publicly reject hate speech against LGBTI persons whenever it occurs and refrain from statements which may reasonably be understood as legitimizing hatred or discrimination against them. When appropriate, establish appropriate sanctions for hate speech that constitutes incitement to lawless violence.tweet this

Prevent prejudices in the media

States should stimulate the adoption of voluntary professional codes of conduct for the media and for journalists, because these actors can play a fundamental role in combating discrimination and in promoting equality principles. These codes can include being alert to the danger of the role media outlets can play in furthering discrimination or negative stereotypes, and reporting in a factually accurate and sensitive manner.tweet this

Law Enforcement

Prevent Extrajudicial Executions and Torture

Undertake all measures to prevent instances of extrajudicial executions, torture, and other cruel, degrading and inhuman treatment against LGBTI persons by the police and other law enforcement agents.tweet this

Police profiling

Adopt the necessary measures to reduce police profiling, selective pat downs and arbitrary arrests of trans women, trans women part of historic discriminated groups because of their race, ethnicity or migration status, and LGBT persons engaged in sex work.

Ensure that police and other law enforcement agents do not detain persons because of their race, socioeconomic status, and/or the perception of their sexual orientation, gender identity, or gender expression.tweet this

Trainings of police and law enforcement

Establish protocols and conduct trainings of police and law enforcement agents regarding human rights and the rights of persons with non-normative sexual orientations and gender identities, in order to curtail abuses and violence against LGBTI persons.tweet this

Health

“Therapies” that are Aimed to “Modify”

Adopt measures to assure that the state regulating body of health guarantee effective processes of regulation, audit and control over the medical personnel that offers “therapies” that are aimed to “modify” the sexual orientation and gender identity.

Prohibit Non-Medically Necessary Interventions on Intersex Children

Prohibit non-medically necessary interventions on intersex children without their full and informed consent. Non-intervention should not hinder or delay registration of birth by relevant State authorities. Ensure intersex persons have access to their medical records.tweet this

Education

Comprehensive Sexual Education

Implement a comprehensive program of education concerning human sexuality in school curricula, at all levels, inclusive of a perspective of diversity around issues of gender, sexual orientation, gender identity, and bodily diversity.tweet this

Prohibit discrimination

Revise school and university internal regulations and manuals, in both the public and private education systems, to prohibit discrimination on the basis of sexual orientation, gender identity, gender expression, or sex characteristics. Manuals must avoid punishment or sanction for using garments or accessories that are not socially associated with the sex assigned to the person at birth. tweet this

Sanction Bullying

Undertake measures to effectively prevent, investigate and sanction bullying and violence in the context of education, including on the basis of sexual orientation, gender identity, and bodily diversity, whether committed by peers, teachers, or school administrators. tweet this

Specific Recommendations: particular groups of LGBTI persons

Indigenous Peoples

Guarantee Freedom from Discrimination and Violence

Incorporate into legislation and public policy the specific needs of indigenous peoples with diverse sexualities, and adopt all measures necessary to guarantee freedom from discrimination and violence to indigenous peoples with non-normative sexual orientations and gender identities. tweet this

Women: lesbian, bisexual, trans and intersex

Guarantee Freedom from Discrimination and Violence

Adopt measures to specifically include lesbian, bisexual, transgender, and intersex women in legislation, public policies, and all government-led efforts regarding the rights of women to be free from discrimination and violence, including sexual violence.tweet this

Persons in the Context of Human Mobility

Include LGBTI persons

Adopt measures to specifically include LGBTI persons in legislation, public policies, and all government-led efforts regarding the rights of migrants and their families, asylum seekers, refugees, stateless persons, victims of human trafficking, internally displaced persons, and other persons who might be more vulnerable to human rights violations in the context of human mobility.tweet this

Respect of Human Dignity

Adopt specific guidelines and policies to ensure that asylum seekers and other migrants who are deprived of liberty are effectively protected from discrimination and violence, whether from custodial staff or other detained persons. This includes ensuring that the decision on where to house trans persons is done on a case by case basis, with due respect for the person’s dignity, and to the extent possible, with prior consultation with the person concerned.tweet this

Children and Youth

Ensure LGBTI children and youth rights

Undertake measures to fulfill the obligations to respect and guarantee the rights of LGBTI children and adolescents, or those perceived as such, to a life that is free from discrimination and violence, including in the context of the family, health facilities, and educational environments.tweet this

Eradicate Biased Information

Eradicate from the school curricula any biased, non-scientific and incorrect information that stigmatizes diverse sexual orientations and gender identities. Also, ensure that school curricula and textbooks include material that promotes respect for and acceptance of diversity.tweet this

Human Rights Defenders

Prevent, Investigate, Punish and Provide Reparations

People Living in Poverty

State Programs Accessible to LGBTI Persons

Ensure that the programs provided by the State for low income, homeless or unemployed persons are accessible to LGBTI persons. Persons should be able to decide their shelter based on their gender identity, and gender neutral shelters should be available.tweet this

Afro-Descendant LGBTI Persons and Those Affected by Racial Discrimination

Prevent Racial Profiling

States are obliged to undertake comprehensive reviews of their domestic legislation and police practices with the goal of identifying and abolishing provisions or practices that entail direct or indirect discrimination or police profiling against LGBTI persons of African descent and other LGBTI persons affected by racial discrimination.tweet this

Improve the living conditions of afrodescendent LGBTI persons

Allocate sufficient and specific human and financial resources to prevention and awareness-raising efforts aimed at eliminating cultural practices, prejudices, and racial stereotypes, and improving the living conditions of afrodescendent LGBTI persons of African descent with respect to health, housing, education, and work.tweet this

Persons Deprived of Liberty

Restrict Solitary Confinement

Ensure that measures aimed at protecting LGBT persons who are deprived of liberty do not place undue restrictions on such LGBT persons. Restrict the indiscriminate and prolonged use of solitary confinement of LGBT persons in places of detention, including immigration detention centers and prisons. tweet this

Trainings of police and of custodial staff

Conduct training of police and of custodial staff in prisons, police lock-ups, immigration detention centers, and other places of detention, to ensure that such agents adequately protect the life and personal integrity of LGBT persons who are deprived of liberty. tweet this